Zilla Parishad,Wardha vs Pralhad S/O Ramchandra Deshpande ...
2017 Latest Caselaw 5828 Bom

                   fa.10.94.jud                      1


                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                NAGPUR BENCH, NAGPUR

                                            FIRST APPEAL NO.10 OF 1994

                   Zilla Parishad, Wardha,
                   through Chief Executive Officer,
                   R/o Wardha, Tahsil and District Wardha.                        .... Appellant

                           -- Versus -

                   01]     Pralhad s/o Ramchandra Deshpande
                           (Deceased)

                     1A. Dr. Atul Prahlad Deshpande,
                         Aged about - Adult, Occupation Service,
                         R/o Plot No.14, Samarth Nagar, Aurangabad 431 001.

                   02]     Manohar s/o Ramchandra Deshpande
                           (Deceased)

                     2A. Pramod Manohar Deshpande,
                         Aged about - Adult, Occupation Service,
                         R/o Plot No.40, Excise Colony, Wardha Road, Nagpur -12.

                     2B. Milind Manohar Deshpande,
                         Aged about - Adult, Occupation Service,
                         R/o Near Satarkar Hospital, Tilak Nagar,
                         Aurangabad - 431 001.

Respondent Nos.3 & 03]     Vijaykumar s/o Ramchandra Deshpande,
4 are deleted as per       Aged about 53 years.
 Court's order dated
    29/09/2004       04]   Smt. Jankibai wd/o Ramchandra Deshpande,
                           Aged about 81 years.

                   05]     Smt. Sushila w/o Vasantrao Shabde,
                           R/o Rajan Shabde Raviraj Apartment,
                           Khare Town, Dharampeth, Nagpur.

                   06]     The State of Maharashtra,
                           Mantralaya, Bombay.                              .... Respondents




                     ::: Uploaded on - 16/08/2017             ::: Downloaded on - 18/08/2017 23:56:47 :::
 fa.10.94.jud                          2


Shri P.D. Meghe, Advocate for the Appellant.
Shri S.S. Ghate, Advocate for Respondent No.5.
Mrs. H.N. Prabhu, A.G.P. for Respondent No.6.


                 CORAM          : KUM. INDIRA JAIN, J.

                 DATE           : AUGUST 10, 2017.


ORAL JUDGMENT :-

This appeal takes an exception to the judgment and

award dated 05/05/1993 passed by the learned Civil Judge,

Senior Division, Wardha in L.A.C. No.1/1991 thereby directing

appellant and respondent no.6 - State of Maharashtra to jointly

and severally pay to respondent nos.1 to 5 Rs.23,230/- as

additional compensation including 12% additional market value

and 30% solatium along with interest at the rate of 9% per

annum on the total amount of compensation for the period of

one year from the date of possession and at the rate of 15% per

annum on total amount of compensation after the expiry of one

year till realization of amount of compensation.

02] The facts giving rise to the present appeal may be

stated, in brief, as under :

i. Appellant - Zilla Parishad, Wardha was in need of land

for construction of road from Nalwadi to Sewagram

Railway Station. State of Maharashtra started land

acquisition proceedings for acquisition of 0.32 R land

of Survey Nos.16 (old no.78) and 18 (old nos.80/1 and

80/2) of Mouza Nalwadi belonging to claimants.

Notification under Section 4 of the Land Acquisition

Act (hereinafter referred to as 'the Act' for short) was

issued on 31/05/1989. It was followed by notification

under Section 6 dated 07/11/1989. The possession

was taken by the authority. Later on notification

under Section 9 of the Act was issued.

ii. Claimants lodged their claim for compensation at the

rate of Rs.2.45 lacs per acre. The Land Acquisition

Officer ('L.A.O.' for short) valued the land for the

purpose of compensation at the rate of Rs.1,31,937/-

per hectare and accordingly passed the award on

25/07/1990. Being dissatisfied with the determination

of compensation by L.A.O., claimants filed reference

under Section 18 of the Act for enhancement of

compensation.

iii. It was the case of claimants that ordinary market

price of the acquired land was at Rs.2.45 lacs per acre

and despite overwhelming evidence, L.A.O.

determined the compensation on lower side. The

submission was that the land under acquisition was

near to Wardha-Nagpur State Highway touching the

industrial area and having non-agricultural

potentiality. It was submitted that Wardha town has

extended up to Nalwadi and several houses have

been constructed up to the field owned by claimants.

iv. A grievance was made that though number of sale

instances were placed on record and it was evident

that land was having non-agricultural potentiality,

meagre compensation came to be granted wrongly

holding the land as dry crop land.

v. Another ground raised on behalf of claimants was that

due to acquisition of the acquired land, remaining

land has severed and it is not useful in any way. It

was submitted that the claimants were also entitled

to severance charges for 0.20 R land. They

accordingly claimed enhanced compensation under

Section 18 of the Act along with interest and solatium,

as stated above.

vi. Appellant and respondent no.6 filed written

statements vide Exhs.27 and 21 respectively and

resisted enhancement of compensation. Acquisition of

land of respondent nos.1 to 5 to the extent of 0.32 R

land of Survey Nos.16 & 18 of Mouza Nalwadi for the

purpose of road is not disputed. Issuance of

notification under Sections 4, 6 and 9 of the Act is

also not in dispute. It is denied that the acquired land

had non-agricultural potentiality and claimants are

entitled to compensation at the enhanced rate as

claimed by them. The severance of land and loss

caused thereby to claimants due to fragmentation is

also denied. The other ancillary claims like rental

charges, interest, solatium came to be disputed by

the acquiring authority and the State. In sum and

substance, submission is that award passed by L.A.O.

is based on well reasoned order substantiated by the

documents and since adequate and proper

compensation has been awarded, reference needs to

be dismissed.

vii. Based on rival pleadings, Reference Court framed

issues at Exh.28. Claimants examined four witnesses

viz. PW-1 Manohar Deshpande [applicant no.2 in the

reference], PW-2 Sanjay Belsare, PW-3 Mukund

Parsodkar and PW-4 Ramesh Jachak. Claimants

produced relevant documents and 18 sale instances

to substantiate their claim regarding enhancement of

compensation. Taking into consideration oral and

documentary evidence, Court came to the conclusion

that claimants would be entitled to compensation at

the rate of Rs.2.00 lacs per hectare i.e. Rs.64,000/- as

compensation for acquired portion of 0.32 R. It was

held that claimants have been awarded compensation

of Rs.52,800/- and additional compensation of

Rs.11,200/- is required to be paid to claimants with

interest and solatium. It is in this background that the

acquiring authority and the State have been held

jointly and severally liable to pay Rs.23,230/- as

additional compensation including 12% additional

market value and 30% solatium along with interest at

the rate of 9% per annum for the initial one year and

15% per annum thereafter till realization of the

amount. Acquiring authority being aggrieved has

assailed the judgment and award passed by

Reference Court in this appeal.

03] Heard Shri P.D. Meghe, learned Counsel for appellant

and Mrs. H.N. Prabhu, learned A.G.P. for respondent no.6.

Learned Counsel for appellant submitted that compensation

determined by L.A.O. is in accordance with the evidence brought

on record and since it is found during inquiry that the land in

question is a dry crop land, L.A.O. has rightly determined the

amount of compensation to the tune of Rs.52,800/-. The

submission is that the claimants could not prove that acquired

land had non-agricultural potentiality and the same is near

Wardha-Nagpur Highway. It is submitted that in the absence of

such proof, Reference Court ought not to have enhanced the

compensation and reference should have been dismissed.

04] It is pertinent to note that 18 sale instances of the

adjoining lands were produced by claimants. 13 sale instances

were not considered by L.A.O. on the ground that acquired land

is far away from the lands referred in those sale instances.

Relying upon four sale instances, L.A.O. came to the conclusion

that the acquired land is a dry crop land and determined the

compensation accordingly.

05] The principal question in the present appeal is

whether the land under acquisition had non-agricultural

potentiality or the same is dry crop land. It is not in dispute that

Survey No.18 was converted to non-agricultural use by claimants

on 16/08/1988 and layout was sanctioned by Tahsildar, Wardha.

Copy of order and layout plan would indicate that land survey

no.18 was put to non-agriculture use and layout was sanctioned

by the competent authority. Some of the plots of these survey

numbers were sold by claimants and the sale instances were

accordingly produced. These sale instances were rightly kept out

of consideration by the Reference Court as they were of post

Section 4 notification period. The question still remains whether

land in question was having non-agriculture potentiality. The

oral evidence of witnesses, order of Tahsildar and layout plan

clearly indicate that the case of claimants is not without

substance. Based on the material, additional compensation of

Rs.11,200/- awarded by the Reference Court cannot be said to

be unjust, improper or on higher side. As such no interference is

warranted in the present appeal. Hence, the following order :

ORDER

I. First Appeal No.10/1994 stands dismissed.

            II.     No order as to costs.



*sdw                                        (Kum. Indira Jain, J)